Payson Planning Commission debates whether to add the threat of criminal prosecution to building code

The question before the Payson Planning Commission seemed simple enough: Should town staff issue on-the-spot citations when faced with ugly signs, hacked down pine trees and strange paint jobs? And if some hard case homeowner just won't listen -- is that a crime?

But the proposal to outfit town staff with bigger sticks to enforce the town's uniform development code (UDC) stumbled into a discussion that illuminated philosophical differences about how much power government bureaucrats should have. Eventually the commission agreed to the proposed changes, calling for a criminal citation and other modifications.

Currently, the town's code provides for a 15-day warning of a violation before town staff can issue a civil citation.

"Certain people figure this means they have 15 days to do whatever they want," said Zoning Administrator Ray Erlandsen. "We don't think that's proper. They're out there laughing at us."

And that's why the town staff also recommended that the ordinance make it a criminal, not a civil matter, if someone violates the same section of the code twice in two years.

But Commissioner Russell Goddard made an impassioned plea against adding criminal charges to the list of options. He said existing civil penalties are enough.

"I have a problem making a criminal out of someone for something they did on their building or on their property. If I want to paint my building a certain color and then say ‘forget you' to the code enforcement officer, I shouldn't be a criminal."

No one mentioned it directly, but the proposed crackdown stemmed in large measure from the two weekends that the owner of a Star Valley topless bar parked at a busy Payson intersection a panel truck with a giant sign advertising his business.

The topless bar sign triggered many phone calls to council members and some behind-the-scenes discussion of both how to make the town codes tougher and how to enforce them on a weekend.

The frustrated town staff in that case discovered the definitely illegal, but thoroughly mobile, sign could pass easily through a loophole in the town's ordinances. When the town adopted the UDC in 1995, the town council wanted to be as business friendly as possible. So instead of letting the staff issue citations immediately, the code requires the town to give offenders what amounts to a two-week warning, before actually issuing a civil citation.

If a homeowner or business owner then ignores that citation, the town must go to civil court to enforce the order.

Erlandsen pushed hard for the proposed change, although he said he had encountered only a handful of times when he would have pursued criminal charges.

When asked for an example of such a case, he essentially described the here-on-Saturday, gone-by-Monday sign on the side of the truck -- although he didn't mention the topless bar by name.

"We told him the sign was illegal -- and he brought it back a second time in a different location. He knew exactly what he was doing. I probably would have referred that to the town attorney's office for prosecution" if the ordinance at that point allowed the town to file criminal charges, said Erlandsen.

Commission Chairman Hal Baas brought up another example. He said a homeowner cut down 15 trees on a large piece of property, ignoring the town code that requires anyone who wants to cut down large pine trees to get a permit.

The landowner in that case had left the three largest pines, but cut down the rest. So the town cited him for violating the town code protecting mature pines, which comes with fines of $50 to $100 per tree. In response, the property owner cut down the three remaining pines.

Goddard persisted in his argument against making criminals out of people who repeatedly violate the building code.

"There's a reason that the UDC has never been a criminal code," said Goddard. "Just because a guy won't change his sign, we don't make him a criminal. And I don't want this to be used in a different way than it was intended."

Erlandsen said the criminal penalties would only come into play after a second, deliberate violation. And even at that, the town attorney's office would have to make the decision on whether to prosecute, not the code enforcement officer. "So you have a second, disinterested party involved. These are very exceptional cases. I don't think it would be used very often, but I do think it's necessary."

Commissioner James Scheidt, a former Michigan fire chief, agreed with Erlandsen. "Once you explain to him he's in violation and he still refuses to adhere to those rules then you have to have another way to enforce your rules and regulations."

"But you have civil penalties," said Goddard. He said sometimes government officials abuse their authority.

"Conspiracies have happened before. I just don't think someone should be subject to criminal prosecution for these kinds of offenses."

Deputy Town Attorney Tim Wright said the threat of criminal charges would often be enough to get someone to follow the rules and said the town would face a higher burden of proof to win a criminal conviction.

Chairman Baas said "I agree that burden on the town (to prove a criminal case) is greatly increased, but on the other hand every time a person stands accused of a crime their cost goes way up too" since they need a criminal defense attorney. "So a vindictive agency could cause a great deal of difficulty."

However, Baas said that the ability to issue a citation on the spot, backed by the possibility of criminal charges for repeat violators would protect the town.

"I'm talking about bulldozers ripping into hillsides and chain saws ripping into trees -- things that cause irrecoverable damage," he said. He said the town also should find a way to make sure it can enforce ordinances on the weekends.

"We know of additions that take place to homes on weekends without permits," said Scheidt. "I think it's time we did something."

Goddard stuck to his position. "I just cannot approve this with the criminal thing in here. The government can use that to harm someone. If the wrong people are in place,with this sort of thing, then you could have a problem"

"I think it's necessary," said Erlandsen. "For the one or two cases that come along, we should have the right to move in that direction." But, he said, you can't deny the town the power to enforce it's codes, just because someone might abuse that power.

"If someone else misuses the code, then they need to be held accountable for it."

In the end, Erlandsen's argument carried the day and the commission voted 6-1 to recommend the proposed changes to the town council.